Mastin v. Bartholomew

• Decision Date: 04 November 1907
• Citation: 92 P. 682,41 Colo. 328
• Parties: MASTIN v. BARTHOLOMEW.
• Court: Colorado Supreme Court

92 P. 682

41 Colo. 328

MASTIN v. BARTHOLOMEW.

Supreme Court of Colorado

November 4, 1907

Rehearing Denied Dec. 2, 1907.

Appeal from District Court, City and County of Denver; F. T Johnson, Judge.

Action by Haywood B. Bartholomew against James W. Mastin. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Bicksler, McLean & Bennett and Bicksler, Bennett &amp Nye, for appellant.

Van Cise & Grant, for appellee.

CAMPBELL J.

This is an action by the holder (transferee) of a negotiable promissory note against the maker. The complaint is in the usual form, alleging execution and delivery of the note by defendant to the payee therein named, its subsequent indorsement and transfer before maturity by payee to plaintiff, who is alleged to be still the legal owner and holder, and nonpayment. The answer admits execution of the note and nonpayment, but denies the other allegations of the complaint. As a second and separate defense, it is averred that the parties to the action are both physicians in the city of Denver, and that defendant, being desirous of purchasing an electric wagon or automobile for use in his profession, applied to a dealer, who was acting as the agent of plaintiff in the sale of a second-hand electric automobile. Defendant told the agent that he wished a machine which was in good condition and perfect in all its parts, and that could be used by him in performing the duties of his profession, and was informed by the agent that his principal (the plaintiff herein) had assured him (the agent), which plaintiff himself afterwards confirmed, that the automobile was in good and perfect condition, the batteries were all right, and plaintiff gave as his only reason for selling that he was unable to get the electric company to put into his barn, where he stored the machine the wires and charging apparatus. The answer proceeds to say that, relying upon plaintiff's representations as to its condition and quality, defendant purchased the automobile at a certain price, part of which was paid in money, and the promissory note here sued upon represented the balance thereof; that the note, although made direct to the agent, was afterwards transferred to, and at all times has been the property of, plaintiff, and that such note was executed solely because defendant relied upon the representations of plaintiff as to the soundness and thoroughly good condition of the vehicle; that the note was without consideration, and that such representations of plaintiff to defendant were false in every particular, and known by plaintiff to be false at the time they were made; that the machine proved to be utterly unfit for the purpose for which defendant bought it; that the batteries were unsafe and would propel the machine only for a short distance before they had to be recharged. Substantially the same matters were set up in the answer as a counterclaim, in which defendant asks for damages which resulted from his acting upon the alleged fraudulent representations; and since, as he alleged, he had returned the automobile to the plaintiff, he asked for a decree rescinding the contract, and for the delivery to him of the note. The replication admits the sale by plaintiff's agent, and that plaintiff took the promissory note as part of the purchase price. It denies that plaintiff 'made any false, untrue and fraudulent statements and representations to the said defendant,' and that defendant was damaged by reason thereof. As to the other allegations of the answer and counterclaim, the plaintiff says that he cannot obtain sufficient knowledge or information upon which to base a belief. Upon these issues, the case was tried to a jury, and resulted in a verdict for plaintiff for the full amount of the principal and interest of the note, upon which judgment was rendered. Defendant appeals.

1. Defendant says that the trial court erred in not permitting him to open and close in introducing evidence and addressing the jury; the point being that, under the issues made by the pleadings, the burden of proof was upon him. The affirmative defense and counterclaim, by the failure to deny, coupled with direct allegations, virtually admit all of the allegations of the complaint; but one of the defenses of the answer is a general denial of the allegations of the complaint not expressly admitted. In this distinct and separate defense, there was an admission of the execution of the note and its nonpayment, but the indorsement and transfer by payee to plaintiff were denied. Hence it was necessary, as the trial court ruled, for plaintiff, before he could recover, to show his ownership, which, if it was in him, resulted from the indorsement and transfer. True, defendant might orally waive or withdraw his denial of the transfer, but he did not do so. There was no error of the court in rejecting this request of defendant. The judgment, however, must be reversed because of prejudicial error in the instructions. Such error is clearly apparent, both under the evidence and the affirmative allegations of the answer.

First it may be said that the replication does not traverse these affirmative averments. The denial of the alleged fraud is merely a conclusion of the pleading; and is in the conjunctive, instead of the disjunctive. There is no denial of the alleged facts set out in the answer which constitute the fraud or the warranty and its breach. The further attempt to put them in issue by saying that plaintiff has not and cannot obtain sufficient knowledge or information upon which to base a belief is wholly ineffective, because he is presumed to know what he himself and his agent said and did. To such defects, however, defendant seems not to have objected. We pass next to a consideration of the answer, and the evidence offered in its support.

The plaintiff expresses in his brief some doubt as to what defense or defenses the defendant intended thereby to plead whether fraud in obtaining the note, or want of consideration, total or partial, but finally concludes that the intention was to plead a want of consideration. It is not necessary that any particular or technical name be given to a pleading. If it state facts which constitute a cause of action or defense, it is good. An examination of this answer shows that several good defenses are commingled in one statement. There is, in effect, a plea of an express warranty and its breach, fraudulent representations sufficient to avoid the contract of sale, a total or partial failure of consideration for the note because of fraudulent representations, and an implied warranty and breach. We are not called upon to decide whether either of these defenses is uncertain, or otherwise defectively pleaded, or should be separately stated, because plaintiff interposed no objection below or here that several distinct defenses were embodied in one statement, or that therein other salutary rules of pleading were violated. It is entirely safe to say that there is pleaded what in law amounts to an express warranty and its breach. It is not necessary to constitute a warranty that any particular form of words shall be used. In Benjamin on Sales (7th Ed.) § 613, the learned author quotes with approval the following: 'It was rightly held by Holt, C.J., and has been uniformly...